American Servicemembers and the ICC
Robinson 0. Everett
When the Statute to
establish the International Criminal Court (ICC) was being considered in Rome,
the United States was concerned that American servicemembers deployed overseas
might be tried by that Court. In that event, the servicemembers would not have
the benefit of the jury trial and the other procedural safeguards available in
a federal district court or in a state court. Nor would the servicemembers be
tried in a tribunal that had the understanding of the unique requirements of
the military society that the members of a U.S. court-martial would possess.
Because the Statute as drafted did not guarantee that the United States would
have exclusive -- or at least primary -- jurisdiction to try alleged war crimes
committed by American servicemembers, the United States-under strong pressure
from the Department of Defense -- declined to sign the treaty. Moreover, unless
some solution can be found for the concerns of the United States, it would be
surprising if the Senate ratified the treaty, even if the Clinton
administration changed its position.
Status of Forces Agreement
The current effort to ensure that American
servicemernbers serving overseas would be tried by an American tribunal for any
alleged war crimes is similar to the effort made by the United States after
World War I to minimize the possibility that American II deployed in Europe and
in Asia would be tried by foreign tribunals. At that time it was clear that
hundreds of thousands of American servicemembers and quite a few of their
dependents would be stationed overseas for long periods of time; and in many
instances, their host countries would have systems of criminal justice quite
different from the system familiar to Americans. Even though U.S.
courts-martial do not provide the accused some of the procedural safeguards
available in civil courts, they do offer protections that in some respects
exceed those available in foreign courts. The fear at the time was that
servicemembers might fare even worse if, instead of being tried by
courts-martial, they were prosecuted in foreign courts. This fear was
heightened regarding the possibility that the victim of a servicemember's
alleged crime was a citizen of the host country. On the other hand, if
Americans were the only victims of a servicemember's crime and if the only
basis for jurisdiction of a foreign court were the crime's occurrence within
that country's territory, a foreign prosecutor might have little interest in
the case; and a serious crime might go unpunished.
To help allay such concerns, the United States
negotiated with the other North Atlantic Treaty Organization (NATO) countries a
Status of Forces Agreement (SOFA), which in Article 7 dealt with issues of
jurisdiction over persons in the visiting forces. Under the provisions of that
article, an American servicemember who engages in conduct that violates
military law but that is not punishable under the law of the host country is
subject to the exclusive jurisdiction of U.S. courts-martial. On the other
hand, courts of the host country have exclusive jurisdiction to try American
servicemembers for conduct prohibited by the law of that country but not
prohibited by U.S. military law. Ironically, some of those involved in
negotiating the SOFA treaty were apparently under the misconception that the
host country would never have exclusive jurisdiction, and their premise was
that any conduct that violated the law of the foreign country would
automatically be a violation of the Uniform Code of Military Justice.1
Under Article 7, for conduct that violates both U.S.
military law and the law of the host country, there is concurrent jurisdiction.
In that event, U.S. courts martial are granted the primary right to exercise
jurisdiction to try crimes committed against the security or property of the
United States or against U.S. personnel or their property, as well as crimes
arising out of actions taken "in the performance of official duty. " In all
other instances of concurrent jurisdiction, the host country has the primary
right to exercise that jurisdiction. However, in deference to U.S. concerns,
the host country is obligated to give "sympathetic consideration" to any U.S.
request for waiver of the primary right to exercise jurisdiction if the United
States claims such waiver "to be of particular importance."2
Apparently the Senate considered that in every case involving concurrent
jurisdiction, a waiver would be "of particular importance:" for, in ratifying
the NATO SOFA, it attached a reservation contemplating that U.S. military
authorities would request on a routine basis that a host country waive its
primary right to exercise jurisdiction.
Under the SOFA, servicemembers are protected against
double jeopardy; trial by a local court precludes trial by court-martial for
the same conduct and vice versa. This preclusion of trial by two sovereigns for
the same misconduct is an interesting contrast to U.S. law, which, absent a
statutory prohibition, permits trial by both a federal court and a state court
for the same criminal conducts.3 Article
7 also requires that an accused be provided these important safeguards: (1)
speedy trial; (2) notice before trial of the specific charge; (3)confrontation
by witnesses; (4) the right to subpoena witnesses; (5)legal representation; (6)
aid of an interpreter; and (7) opportunity to communicate with the
servicemember's own government and the right to have a representative thereof
present at trial when the rules of court permit.4
The NATO SOFA made provision for a "civilian
component" of the visiting armed forces -- civilian dependents and employees
--and for purposes of criminal jurisdiction they were treated in the same
manner as servicemembers. At the time of entry into the SOFA, the United States
assumed that these members of the "civilian component" would be subject to
trial by U.S. court-martial, as authorized by Article 2 of the Uniform Code of
Military Justice.5 Therefore,
just as for servicemembers, the United States had a basis for insisting that
such civilians be tried by U.S. courts-martial, rather than by courts of the
host countries. However, in 1957, the Supreme Court ruled that Article 2 was
unconstitutional insofar as it sought to extend court-martial jurisdiction to
include persons who did not possess the status of being members of the armed
forces.6 Thereafter, civilians
accompanying the armed forces overseas could be tried only in the courts of the
host countries because the congressional grant of jurisdiction to
courts-martial was unconstitutional and no jurisdiction had been granted to
federal district courts to try crimes committed by civilian dependents and
employees overseas.7
With the precedent of the NATO SOFA to rely on, the
United States negotiated similar treaties with Japan and various other
countries where U.S. troops were deployed. Some of these agreements went even
further than the NATO SOFA in limiting the extent to which American
servicemembers would be subject to the jurisdiction of the host country. In
each instance, the United States, which has more of its servicemembers deployed
overseas than any other country, was concerned to limit the risk that they
might be subjected to trials lacking the procedural safeguards these
servicemembers would enjoy in U.S. courts. However, if both the United States
and the host country claimed primary jurisdiction to try a servicemember and
the United States decided to waive its claim, that decision was not subject to
judicial review.8
The Statute of the ICC
Just as the United States was concerned half a century
ago about the exposure of American servicemembers to trial in foreign courts,
the forthcoming establishment of the ICC has led to concerns that American
servicemembers may become subject to trial in that Court. The extent of that
exposure depends in part on the scope of the ICC's jurisdiction, which,
according to Article 5 of the Statute of the ICC, is limited "to the most
serious crimes of concern to the international community as a whole." Subject
to that limitation, Article 5 grants the Court "jurisdiction in accordance with
this Statute with respect to the following crimes: (a) the crime of genocide;
(b) crimes against humanity; (c) war crimes; (d) the crime of aggression." As
detailed in Bartram Brown's chapter in this volume (chapter 4), the first three
of these crimes are defined by the Statute. The crime of aggression is
to be defined subsequently by the Assembly of the States Parties-those States
that ratify the Statute -- and the ICC shall exercise jurisdiction over this
crime only after it has been defined.
Genocide encompasses killings and certain other
acts "committed with intent to destroy, in whole or in part, a national,
ethnical, racial, or religious group, as such.9
"'Crimes against humanity refers to murder, "extermination:'
"enslavement:' torture, rape, persecution, "apartheid:' or various other acts
"committed as part of a widespread or systematic attack directed against any
civilian population, with knowledge of the attack."10
The Statute's Article 8, which concerns "war crimes:'
has special significance for those concerned about possible trial of American
servicemembers by the ICC. This Article grants the Court jurisdiction "in
respect of war crimes in particular when committed as part of a plan or policy
or as part of a large scale commission of such crimes." The ensuing definition
of war crimes is quite extensive. It includes "grave breaches of the
Geneva Convention of 12 August 1949" and a number of "other serious
violations of the laws and customs applicable in international armed conflict,
within the established framework of international law." Various acts are
encompassed within the definition of war crimes even though such acts take
place in "an armed conflict not of an international character."11
However, Article 8 makes clear that the term war crime does not apply to
"situations of internal disturbances and tensions, such as riots, isolated and
sporadic acts of violence or other acts of a similar nature."12
The "elements" of the various crimes within the ICC's jurisdiction are to be
adopted by the Assembly of the States that ratify the Statute.13
The ICC Statute creates the-office of the Prosecutor,"14
who "may initiate investigations proprio motu on the basis of information on
crimes within the jurisdiction of the Court" and who, in analyzing "the
seriousness of the information received ... may seek additional information
from States, organs of the United Nations, intergovernmental or
non-governmental organizations, or other reliable sources that he or she deems
appropriate, and may receive written or oral testimony, at the seat of the
Court." 15 If the Prosecutor
initiates charges that ultimately are tried by the ICC, many procedural
safeguards will apply-some akin to those available in U.S. trials, whether
civil or military.16
Nonetheless, trial of an American servicemember by the
ICC would be quite different from trial by court-martial or by a federal
district court. For example, the trial would be conducted entirely by Judges,17
rather than by jurors or by members of a court-martial.18
Obviously, viewpoints differ as to whether trial by experienced judges would be
as likely as trial by jury or court-martial to produce an accurate and just
result. It precludes the occasional "jury nullification" that prevents
punishment of a guilty accused, and it ensures that there will be no favoritism
for persons of the same nationality as the fact-finders. On the other hand, the
Judges selected for the ICC will probably lack the understanding of the
military society and its needs that would be possessed by people who were in
the armed services or who had military experience. Moreover, some of the ICC
Judges might even be hostile to American servicemembers.
In at least one situation, however, the establishment
of the ICC might serve to benefit American servicemembers. If an American
servicemember fell into the hands of a foreign government and was accused of a
crime that was committed on the foreign government's territory or that involved
its nationals, that government might wish to try the servicemember for the
crime. In that event, the United States -- because of its traditional concerns
about assuring a fair trial for its servicemembers -- could request extradition
of the accused to the United States for trial in an American court, with the
accompanying procedural safeguards.19
The foreign government might then refuse the request for extradition to the
United States for trial.20 On
the other hand, the foreign government might be willing to surrender the
servicemember to the ICC for trial in order to eliminate a political
confrontation with the United States and without appearing to surrender its own
interests in having the alleged crime vigorously prosecuted. This scenario
would be somewhat similar to that recently presented by the negotiations for
the trial at The Hague of two Libyans accused of blowing up a Pan American
airplane over Lockerbie, Scotland, in December 1988.
Complimentarity as a Limitation on ICC
Jurisdiction
Even though trial of an American servicemember by the
ICC, with its procedural safeguards, may seem preferable to trial by some
foreign courts, the obvious first choice of the United States is that the
servicemember be tried by a U.S. tribunal.21
Indeed, the willingness of American officials to deploy armed forces overseas,
for peacekeeping purposes or otherwise, might be diminished if that deployment
would subject American servicemembers to the jurisdiction of the ICC.
Therefore, it is important to consider what means are available to reduce --
or, if possible, to eliminate-the risk that American servicemembers will be
tried by the ICC.
In this regard, great assistance is afforded by
Article 1 of the ICC Statute, which states that the Court "shall be
complementary to national criminal jurisdictions, "The concept of complementarity
is implemented by Article 17, which provides that the ICC "shall determine
that a case is inadmissible where:
-
The case is being investigated or prosecuted by a State which has jurisdiction
over it, unless the State is unwilling or unable genuinely to carry out the
investigation or prosecution;
-
The case has been investigated by a State which has jurisdiction over it and
that State has decided not to prosecute the person concerned, unless the
decision resulted from the unwillingness or inability of the State genuinely to
prosecute;
-
The person concerned has already been tried for conduct which is the subject of
the complaint, and a trial by the Court is not permitted under article 20,
paragraph 3;22
or
-
The case is not of sufficient gravity to justify further action by the Court."
In light of Article 17, the ability of the United
States to prevent the trial of American servicemembers by the ICC will be
greatly enhanced if U.S. courts have jurisdiction to try servicemembers for any
crime that falls within the ICC's jurisdiction. Moreover, since Article 17 by
its terms applies to a "State:' and not only to a "State Party," the United
States-whether or not it becomes a party to the ICC-may block the exercise of
jurisdiction by that Court (1) if the crime for which the servicemember might
be tried by the ICC is within the jurisdiction of a U.S. court, civil or
military, and (2) if U.S. authorities proceed in good faith to investigate the
circumstances of the crime and, should they find it appropriate, try the crime
in a U.S. court. Accordingly, it is important to ascertain when conduct by a
servicemember that would constitute a crime under the ICC Statute would also be
a crime in a U.S. court. This inquiry, in turn, may lead to a recommendation
that the existing jurisdiction of U.S. courts be broadened in order to limit
the potential exercise of ICC jurisdiction over American servicemembers.
With respect to American servicemembers still on
active duty, the Uniform Code of Military Justice provides wide-ranging
authority for courts-martial to punish almost any type of misconduct. For
example, murder, rape, maiming, arson, and burglary are specifically dealt with
by punitive articles of the Uniform Code.23
Therefore, the conduct that constitutes a war crime may in many instances be
charged as a collection of separate violations of the code's punitive articles,
for example, a collection of murders and rapes.24
In addition, Article 133 of the Code, 10 U.S.C. 933, prohibits "conduct
unbecoming an officer and a gentleman," a prohibition that, regarding officers,
would probably include some of the conduct prohibited by the Statute of the
ICC.
Finally, Article 134 of the code, the "General
Article," forbids "all disorders and neglects to the prejudice of good order
and discipline in the armed forces, all conduct of a nature to bring discredit
upon the armed forces, and crimes and offenses not capital." In many instances,
conduct by an American servicemember that violates the ICC Statute would be
prohibited by the second clause of Article 134, which concerns
service-discrediting conduct. For example, a servicemember's participation in a
"war crime" should be considered service-discrediting. Moreover, the third
clause of Article 134 also creates a broad liability because it includes all
"crimes and offenses not capital" -- a phrase that refers to violations of
federal criminal statutes.25
In light of Article 134's breadth of coverage with
respect to the conduct of servicemembers, a firm basis exists for invoking the
principle of complementarity to preclude the ICC from trying servicemembers who
are still on active duty. Almost any conduct by a servicemember that could
warrant trial in the ICC could also justify the preferring of charges for trial
by court-martial. A good-faith investigation of those charges and a trial by
court-martial -- if warranted by the evidence discovered in the investigation
-- would then preclude trial in the ICC.26
Subject to the provisions of any applicable statute of
limitations, Article 3(a) of the Uniform Code authorizes a general
court-martial to try a former servicemember charged with an offense against the
Uniform Code that is "punishable by confinement of five years or more and for
which the person cannot be tried in the courts of the United States or any
State or Territory thereof or of the District of Columbia." The statutory
purpose was to eliminate an embarrassing jurisdictional gap revealed after
World War 11 when occasionally no tribunal -- military or civilian, American or
foreign -- had jurisdiction to try former servicemembers for offenses committed
while they had been on active duty.27
The Supreme Court, however, in 1956 ruled in Toth v. Quarles that
retention of courtmartial jurisdiction after military status ceased was not
permitted by the Constitution.28
Therefore, no tribunal was available that could consider the charges against
Toth; and his participation in killing a North Korean became for him a crime
without punishment.29 This
holding left U.S. courts-martial without jurisdiction to try discharged
servicemembers for any alleged war crimes or misconduct in Korea or in Vietnam.30
Expansion of federal district court jurisdiction to include crimes committed by
servicemembers before their discharge would allow invoking complementarity to
preclude their trial in the ICC.
Conducting military operations overseas often requires
the presence of highly skilled technicians and experts who are not members of
the armed forces. If such civilians are alleged to have committed war crimes,
it also might be desirable to assure that these persons could be tried for
those crimes in federal district courts rather than by the ICC.
The War Crimes Act
Some recent additions to the federal criminal code
have provided more opportumties for invoking complementarity on behalf of
servicemembers and have created an opportunity to utilize that principle to
prevent the ICC from trying (1) former servicemernbers for their conduct while
on active duty or (2) civilians who might otherwise be subject to the Court's
jurisdiction. In 1996, Congress enacted the War Crimes Act, which made
punishable "a grave breach of the Geneva Conventions,"
31 whether committed within or outside the United States, if the victim
or the perpetrator is a U.S. servicemember or "national"
32 A year later, Congress passed the Expanded War Crimes Act, which
replaced the term grave breach with war crime, a term defined to
include violations not only of the Geneva Conventions, but also of the Amended
Protocol on Land Mines, at such time as the United States ratifies it; of
certain articles of the Annex to Hague Convention IV; and of Common Article 3
of the Geneva Conventions.33
The legislative history of the War Crimes Act makes
clear that its enactment resulted chiefly from a desire to establish U.S.
criminal jurisdiction over people who perpetrated war crimes against Americans.34
However, its language also applies to American servicernembers who commit war
crimes. Probably the "crimes and offenses not capital" clause of Article 134 of
the Uniform Code incorporates the War Crimes Act and thereby creates
jurisdiction for courts-martial to try American servicemembers for violating
the act. The chief issue would be whether the War Crimes Act's provision for a
death penalty "if death results for the victim" would preclude its
incorporation by the third clause of Article 134, which concerns only offenses
"not capital." However, if a death penalty were not being sought, the argument
is persuasive that the authorization of capital punishment in the War Crimes
Act is severable and should be disregarded.35
The Law of War
In defining the jurisdiction of general
courts-martial, Article 18 of the Uniform Code of Military Justice states
specifically:
Subject to article 17 (Jurisdiction of courts-martial
in general], general courts-martial shall have jurisdiction to try persons
subject to this code for any offense made punishable by this code and may,
under such limitations as the President may prescribe, adjudge any punishment
not forbidden by this code, including the penalty of death when specifically
authorized by this code. General courts-martial shall also have jurisdiction to
try any person who by the law of war is subject to UW by a military
tribunal and may adjudge any punishment permitted by the law of war.36
This language signifies that general courts-martial
may exercise not only jurisdiction derived from Article I, Section 8, Clause 14
of the U.S. Constitution which pertains to crimes committed by members of the
"land and naval forces" -- but also jurisdiction derived from Article I,
Section 8, Clause 10 -- which empowers Congress to define and to punish
"offences against the law of nations" and which is independent of the military
status of the person who commits the "offence." Therefore, the jurisdictional
limitation imposed by Reid v. Covert (1957) would not apply to a general
court-martial exercising jurisdiction predicated on the "law of war."
The jurisdiction of courts-martial under the law of
war is also recognized implicitly by Article 21 of the Uniform Code, which
states:
The provisions of this code conferring jurisdiction upon
courts-martial shall not be construed as depriving military commissions,
provost courts, or other military tribunals of concurrent jurisdiction in
respect of offenders or offenses that by statute or by the law of war may be
tried by such military commissions, provost courts, or other military
tribunals.37
Articles 104 and 10638
are also intended to authorize courts-martial to exercise jurisdiction
predicated on the law of war as a component of the "Law of Nations* " The
former article authorizes "death or such other punishment as a court-martial or
military commission may direct" with respect to "any person" who "aids, or
attempts to aid, the enemy" in several specified ways. The latter article,
entitled "Spies:' provides that a mandatory death penalty shall be imposed upon
trial and conviction "by a general court-martial or by a military commission"
of "[a]ny
person who in time of war is found lurking as a spy or
acting as a spy in or about" certain types of military installations. In light
of these provisions of the Uniform Code, it seems clear that Congress has
authorized a general court-martial or a military commission to try, -a
servicemember for war crimes. Likewise, civilians who engage in conduct
prohibited by the law of war --presumably including war crimes -- may be tried
by a general court-martial or by a military commission.39
During and after World War II, the Supreme Court had
several occasions to consider whether certain conduct violated the law of war
and was subject to trial by a military tribunal. The first occasion was in 1942
when the Court in ex parte Quirin upheld the jurisdiction of a military
commission established by President Franklin Roosevelt to try some saboteurs
who had been landed on the Atlantic coast from German submarines.40
The trial was being conducted in Washington, and the defendants argued that
trial by a military commission at a time and place when civilian courts were
open violated the Constitution. In this connection, they relied especially on
ex parte Milligan (1866) 41
which had ruled that a military commission convened in Indiana when civil
authorities were in full control lacked' jurisdiction to try a suspected
Confederate sympathizer. However, as the Court pointed out, unlike Milligan,
which involved martial law and emergency measures when civil authority could
not function, the German saboteurs were being tried under the law of war, which
was a branch of the "Law of Nations' " Under Article I, Section 8, Clause 10 of
the Constitution, Congress could "define and punish" violations of the law of
war and could authorize their trial by court-martial or military commission.
The trial of the German saboteurs was within the parameters set by Congress in
the exercise of this power.42
A similar result was reached by the Supreme Court in
re Yamashita (1946).43 There it
upheld the jurisdiction of a U.S. military commission to try a Japanese
general accused of war crimes in the Philippines-crimes consisting chiefly of
his failure to prevent his troops from committing many violent offenses against
occupants of the territory they controlled."44
According to the Court, the use of a military commission, rather than a general
court-martial, to punish such misconduct was an option authorized by Congress.
In Madsen v. Kinsella (1952),45
the Supreme Court considered whether the United States Court of the Allied High
Commission for Germany, a tribunal created by the United States in connection
with its postwar occupation of a part of Germany, had jurisdiction to try an
American civilian dependent. She was charged with murdering her husband, who
was an American army officer. Reasoning that under the law of war a victorious
nation had the right to administer justice in occupied territory by such means
as it saw fit, the Court held that the occupation court had jurisdiction even
with respect to an American civilian present in the occupied territory. As a
result, Mrs. Madsen received neither the procedural safeguards that would have
been present in a U.S. civil court nor those she would have enjoyed in a trial
by court-martial.
Analysis of these precedents leads to certain
conclusions. In the first place, the Constitution gives Congress the power
under both Article 1, Section 8, Clause 14, and Article I, Section 8,
Clause 10, to provide that American servicemembers may be tried by
court-martial for war crimes. Any conduct by a servicemember that would be
subject to trial by the ICC as a war crime probably could also be made subject
to trial by a general court-martial. Indeed, to a considerable extent, the
existing provisions of the Uniform Code of Military Justice and the War Crimes
Act have already created jurisdiction over war crimes on the part of U.S.
courts martial-at least if the death penalty provisions of that Act do not
preclude a "war crime" from being considered a "crime and offense not capital"
within the meaning of Article 134 of the Code. Therefore, the principle of
complementarity set out in the ICC Statute would provide the United States a
basis for maintaining that American servicemembers accused of crimes prohibited
by the Statute should be tried by a U.S. court-martial, rather than by the ICC.
As a matter of caution, some additions to the Uniform Code and to the Manual
for Courts-Martial might be desirable in order to make even firmer the
conclusion that, as to American servicemembers, the jurisdiction of
courts-martial would be coextensive with that of the ICC.46
The United States also may try in a federal district
court a servicememberor a civilian-who has been charged with a violation of the
War Crimes Act.47 Accordingly,
if an American servicemember or civilian is charged with conduct that falls
within the Act, the principle of complementarity would authorize the United
States to demand that the accused be tried in a federal district court, rather
than in the ICC. Currently, the War Crimes Act does not cover many of the
crimes that are the subject of the Statute. Moreover, under the War Crimes Act,
an issue may arise as to whether the alleged misconduct occurred during a
conflict that constitutes a "war." Therefore, Congress might wish to consider
whether this Act should be amended in a way that would ensure that the conduct
it prohibits is coextensive with that as to which the ICC would have
jurisdiction.48 Admittedly, it
may seem distasteful to modify U.S. criminal statutes to include crimes
initially defined by others; but even so, this alternative should be considered
in order to ensure the benefits of complementarity.
Quirin and Yamashita also established
that the United States might use military commissions, rather than
courts-martial, to try civilians for offenses against the law of war. Thus,
even if American civilians were accused of conduct that violated the law of war
as recognized in treaties, court decisions, and otherwise, but that was not
specifically prohibited by the War Crimes Act, the United States could
plausibly contend that, pursuant to the principle of complementarity, it is
entitled to establish military commissions to try the accused, rather than
leaving them subject to trial by the ICC.49
Indeed, the possible advantage to be derived from having military commissions
available as a means to try civilians accused of war crimes would provide an
additional reason for the Supreme Court to reaffirm the existence of such
jurisdiction on the part of military cominissions in the event of a challenge
thereto.50
Conclusion
Complementarity does not provide American
servicemembers deployed overseas any absolute protection against being brought
to trial before the ICC. However, this principle recognized in the ICC Statute
does make available to the United States a means for insisting that U.S.
authorities-not the ICC-have the opportunity to investigate and to prosecute
alleged crimes by servicemernbers against the "Law of Nations." Perhaps,
therefore, the threat to American servicemembers posed by the Statute may be
less ominous than many have supposed.
Whether the Statute of the ICC is ratified by the
United States may well depend on Congress's evaluation of the extent of that
threat and on a consideration of the means that may be available for reducing
such threat. Thus, in preparation for deciding whether to join with other
nations in ratifying the Statute, Congress should undertake a careful review of
existing U.S. legislation concerning the jurisdiction of U.S. courts-civil or
military-to deal with conduct that would come within the jurisdiction of the
ICC. To the extent such conduct is not currently subject to punishment by any
U.S. tribunal, Congress should then determine whether the Uniform Code of
Military Justice and other federal penal statutes need to be amended to
prohibit such conduct.
Complementarity will not invariably preclude the trial
of American servicemembers by the ICC. Some cases involving claimed war crimes
by American servicemernbers may be politically infeasible even to
investigate-much less to prosecute-because to do so might be construed as the
acceptance by the United States of a false premise that the conduct involved
was criminal. Nevertheless, providing the United States with the best possible
basis for invoking complementarity to forestall trial by the ICC of American
servicemembers or civilians appears to be a worthwhile endeavor.
Notes
1. Thus, a Senate report commented, "It should be
noted that, as a practical matter, no such case is likely to arise respecting
United States troops, because the Uniform Code of Military Justice, which
Congress enacted for United States Armed Forces, permits any offense against
the law of the country where the troops are stationed to be treated as an
offense against the Code." See U.S. Senate, Executive Report No. 1, 83d Cong.,
Ist sess., p. 5. 1 am unaware of any provision of U.S. military law that
automatically makes punishable by court-martial conduct that violates the law
of a host country. Probably, the cited report was construing a reference to
"crimes and offenses not capital" in Article 134 of the Code, 10 U.S.C. sec.
934, to include any "crime" or "offense" under the law of the State or foreign
country where the servicemember's conduct occurred. However, the quoted
language has consistently been construed to apply only to "crimes and offenses"
under Federal statutes. Robinson Everett, Military Justice in the Armed Forces
of the United States (Harrisburg, Pa.: Military Service Publishing,
1956), 41, 66.
2. Statute, art. 7, par. 3.
3. In U.S. constitutional law, self-incrimination is
treated differently than double jeopardy; and a witness cannot be compelled by
federal officials to give testimony that would be incriminating under state
law, and vice versa. However, self-incrimination under the laws of a foreign
sovereign may be disregarded. United States v. Balsys, 118 S.Ct. 2218
(1998).
4. Some have suggested that the provision for these
protections in the NATO Status of Forces Agreement constituted the first
international "Bill of Rights."
5. 10 U.S.C. sec. 802. By its terms, the Uniform Code
applied to "all persons serving with, employed by, or accompanying the armed
forces without the continental Emits of the United States and without the
following territories: That part of Alaska east of longitude one hundred and
seventy-two degrees west, the Canal Zone, the main group of the Hawaiian
Islands, Puerto Rico, and the Virgin Islands." Art. 2 (11), U.C.M.J., 10 U.S.C.
sec. 2(l 1); Public Law 506, 8 1 st Cong., c. 169, sec. 1, 64 Stat. 108.
6. Reid v. Covert, 354 U.S. 1 (1957); Kinsella
v. Singleton, 361 U.S. 234 (1960); McElroy v. Guagliardo, 361
U.S. 281 (1960).
7. On various occasions, Senator Sam Ervin of North
Carolina, who chaired the Subcommittee on'Constitutional Rights of the Senate
Committee on the Judiciary, proposed legislation to authorize federal district
courts to try civilian dependents and employees for conduct that would
constitute a violation of the punitive articles of the Uniform Code of Military
Justice if it had been committed by a servicemember. His purpose was to
eliminate the jurisdictional void created by Reid v. Covert (1957) and
to provide a basis for the United States to request that American civilian
dependents and employees overseas be tried in a federal district court, rather
than by a foreign tribunal or else not tried at all. Senator Ervin also
proposed legislation to fill the jurisdictional void created by Toth v. Quarles
(350 U.S. 11 [1955]), which held that servicemembers who committed crimes
during their enlistment were no longer subject to court-martial after they had
separated from the armed forces.
8. In Wilson v. Girard (354 U.S. 524 [1957]),
the Supreme Court declined to review the decision by the United States to waive
its claim of primary right to exercise jurisdiction over an American soldier
who had killed a Japanese woman at a time when he was serving on duty as a
guard.
9. Statute, art. 6.
10. Statute, art. 7.
11. Statute, art. 8, pars. 2(c), 2(e).
12. Statute, art. 8, pars. 2(d), 2(f).
13. Statute, art. 9, par. 1.
14. Statute, art. 42.
15. Statute art. 15.
16. Likewise, article 7 of the NATO SOFA requires that
certain rights be granted to a servicemember tried by a host country.
17. Statute, art. 36, par. 4(b). The ICC will have
eighteen full-time members elected for nine-year terms, and the candidates will
be nominated by the States Parties. Each State Party may put forward one
candidate for any election. If the United States does ratify the Statute,
probably one Judge will be an American. However, if the United States does not
ratify; no American will serve on the Court because any candidate put forward
must be "a national of a State Party."
18. In a U.S. court-martial, an accused who so elects
may be tried by a military judge alone if the judge approves. See U.C.M.J. art.
16, 10 U.S.C. see. 816. Waiver of jury is also allowed in most U.S. civil
courts.
19. Of course, this request can only be made if a U.S.
court would have jurisdiction over the offense and if the offense is one
specified in the extradition treaty.
20. Likewise, if the alle ged misconduct occurs in a
country that has a SOFA with the United States, the foreign government might
claim that it has either exclusive jurisdiction or the primary right to
exercise concurrent jurisdiction over the servicemember and might refuse to
surrender him or her to U.S. military authorities for trial by court-martial.
This would present a situation similar to the one that existed in Wilson v.
Girard, supra.
21. Sometimes a servicemember might prefer to be tried
for a war crime by the ICC, where a death penalty is not authorized, rather
than be tried in a U.S. court under the War Crimes Act, 18 U.S.C. sec. 2441,
which permits a federal district court to impose the death penalty for a war
crime involving willful killing.
22. Statute, article 20, paragraph 3, forbids trial by
the ICC for "the same conduct unless the proceedings in the other court 'were
to shield the accused from responsibility for crimes within the ICC's
jurisdiction or "were not conducted independently or impartially in accordance
with the norms of due process recognized b international law."
23. Statute, arts. 118, 120, 124, 126, 129, 10 U.S. C.
secs. 918, 920, 924, 926, 929.
24. The murders and assaults at My Lai, Vietnam, of
which Lieutenant William Calley was convicted were probably war crimes; United
States v. Calley, 48 C.M.R. 19, 22 U.S.C.M.A. 534 (1973). See Gary D.
Solis, Son Thang: An American War Crime (Annapolis, Md.: Naval
Institute Press, 1997).
25. As has already been noted, this language does not
include violations of foreign law.
Robinson 0. Everett
26. Statute, art. 20, par. 3.
27. Under the Articles Of War as they existed during
World War II, no Provision was made for retention Of court-martial jurisdiction
to try ex-servicemembers; and extradition to a foreign country might not be
authorized by any treaty with the country where the crime took place. Cf. United
States v. Icardi, 140 FSupp. 383 (D.D.C. 1956).
28. Toth v. Quarles (1956).
29. Robinson Everett and Laurent Hourcle, "Crime
without Punishment:' Air Force JAG Law Review 13 (1971): 184. However,
Article 3(a) has been invoked to authorize trial of servicemembers who
committed a crime while on active duty, were discharged, and thereafter
reenlisted.
30. As will be discussed later, it is arguable that
under the law of war, a military commission or general court-martial might have
had jurisdiction over any war crimes committed in Vietnam by a former
servicemember.
31. 18 U.S.C. Sec. 2441---"Conduct defined as a grave
breach in any of the international conventions relating to the laws of warfare
signed at Geneva 12 August 1949 or any protocol to any such convention to which
the United States is a party."
32. The Act uses national as defined in Section
101 of the Immigration and Nationality Act, 8 U.S.C. 1101.
33. This contains rules governing internal conflict as
wen as conflict between separate countries.
34. The War Crimes Act of 1996 was introduced by a
freshman North Carolina congressman, Walter Jones Jr., as the result of a
conversation with a former prisoner of war who believed that he had been the
victim of war crimes by his North Vietnamese captors and who was concerned
about the apparent lack of jurisdiction for U.S. courts to try such persons.
35. When testifying as a witness in favor of the War
Crimes Act Of 1996, 1 suggested that the death penalty provision be removed.
Although I have no conscientious objection to capital punishment, my concern
was that the death penalty provision would probably be seldom applied but that
its presence in the act might create problems of various types such as in
seeking extradition, in incorporating the War Crimes Act under the third clause
of Article 134, and in countering claims that human rights are violated if an
accused is sentenced to death. Possibly, Congress should now enact some
specific provision to authorize severance of the death penalty provision from
the act in situations where its presence creates a problem.
36. 10 U.S.C. 818.
37. 10 U.S.C. 821.
38. 10 U.S.C. secs. 904 and 906.
39. When the War Crimes Act of 1996 was being
considered, I suggested that it should contain an express provision that it did
not repeal by implication the jurisdiction of general courts-martial and
military commissions with respect to violations of the law of war. Article 21
would provide the precedent for such a provision. Legislative counsel informed
me that this was unnecessary because under such circumstances implied repeal
does not take place. However, the legislative history does include a statement
that the Act was not intended to repeal any existing jurisdiction of military
tribunals.
40. 317 U.S. 1 (1942).
41. 71 U.S. 2 (1866).
42. One of the defendants claimed to be an American
citizen; but even if this claim were true, the Court concluded that it had no
effect on the jurisdiction of the military commission.
43. 327 U.S. 1 (1946).
44. Yamashita is an important precedent because
the defendant was convicted and executed because of his failure to maintain
control of his troops, rather than because of active misconduct on his part.
Article 28 of the ICC Statute provides specifically for command responsibility.
45. 343 U.S. 341 (1952).
46. Although the Manual for Courts-Martial is
promulgated by executive order of the president-who has no authority to
legislate-the manual's interpretation of the punitive articles of the Uniform
Code of Military Justice is often given considerable weight in construing those
articles. The manual has traditionally contained extensive discussions of the
elements of offenses prohibited by the code.
47. 18 U.S.C. Sec. 2441.
48. When I testified concerning the House bill that
became the War Crimes Act of 1996, 1 expressed the view that the act should be
extended to invoke the principle of universality and to grant jurisdiction to a
U.S. district court to try any of the prohibited war crimes, whether or not the
perpetrator or victim was an American servicemember or national. I still
believe this broadening of jurisdiction would be desirable, subject perhaps to
some requirement of special approval by the U.S. attorney general if Americans
were not directly involved in the war crime. However, creation of the ICC might
reduce the occasions for invoking universal jurisdiction.
49. The same argument invoking complementarity could
be made with respect to war crimes allegedly committed by servicemembers.
However, trial by military commission, rather than by general court-martial,
would deprive the servicemember of many safeguards available in a
court-martial. Among those safeguards would be the appellate review that.
Congress has prescribed for trials by court-martial. Thus, trial by
court-martial is preferable, even if a military commission would be
constitutionally permissible.
50. As with servicemembers, it would be preferable to
try alleged war crimes of civilians by court-martial-for which trial procedure
and appellate review are familiar and well defined by the code and the Manual
for Courts-Martial-rather than by ad hoc military commissions.
Back to the Table of
Contents
|